Archive for October, 2008

The tale of Joe the Plumber is developing a thousand derivative lives. One, at least, is a bits story.

After Joe Wurzelbacher became a celebrity, someone in the Ohio Department of Job and Family Services ran a check on the state databases to see if he owed any child support. The McCain campaign has cried foul, and accused the Obama campaign of doing it. The Department has a non-political explanation, reported here:

Given our understanding that Mr. Wurzelbacher had publicly indicated that he had the means to purchase a substantial business enterprise, ODJFS, consistent with past departmental practice, checked confidential databases to make sure that if Mr. Wurzelbacher did owe child support, or unemployment compensation taxes, or was receiving public assistance, appropriate action was being taken.

Believe that or not as you wish. There doesn’t seem to be a written policy that spells this out, or a list of the other people who have been subject to this practice. It’s not helpful that the head of the office is a $2500 donor to the Obama campaign. On the other hand, what she describes (.pdf here) as the standard practice seems reasonable enough: that they follow up on phone tips about big spenders who may have skipped their child support payments, and they compare the list of big lottery winners to their lists of deadbeat dads. No such office wants to be embarrassed by reading in the newspaper what they could have figured out on their own just by being awake and alert.

This case resembles one we reported earlier, when Oklahoma tax officials went to town after reading students’ boasting about the success of their keg party business. Bits don’t come tagged with fine-grained access and usage restrictions. You may be able to stipulate who sees them and who doesn’t, but new situations arise every day and it’s impossible to lay down the rules with mathematical or legal precision limiting who can use them or for what. Human judgment is always going to be involved, and human judgment must be shaped by training and broad principles as well as being limited by formal access restrictions. What’s changed is that there is so much more information and so many more people who have the potential to access it. When it was hard to get at the data, the likelihood of its being misused was much lower.

Siva Vaidhyanathan has a good summary of the deal, in the details of which may lie the devil. Like me, he regrets that we won’t now get any clarification on the limits of fair use in the digital age — though he thinks Google would have lost, which would have been a disaster since it would have strengthened the hand of the content industry to keep cracking down on people using small amounts of material for commentary or indexing.

He notes that as long as we rely on Google book search, it’s better for us if it works better. And it will work better — Google will be free to show larger excerpts from copyrighted works. But the deal also will firm up Google’s status as the dominant digital book depository. And in light of the anti-trust issue that raises, Siva notes an interesting coincidence: Google CEO Eric Schmidt hit the road campaigning for Barack Obama last week, just at the moment when the parties must have been hammering out the final draft of this agreement.

And finally, he cautions us not to get too excited about the deal until the court has approved it.

In a related development, Harvard has announced that its library won’t be extending its cooperation with Google to its collection of in-copyright materials, because the deal places too many restrictions on the ways in which they would be made available. Google has been digitizing only the out-of-copyright works in Harvard’s collection, though apparently Harvard’s position has been that Google’s entire project was legal. Not clear to me that Harvard’s decision poses any great problems for Google, since there tend to be multiple sources for copyrighted works.

The RIAA (Recording Industry) went after Joel Tenebaum, alleging that he downloaded seven copyrighted songs while he was a teenager. Thousands of teenagers get similar notices and pay up. Joel fought back, and the case has reached an extraordinary juncture. Joel is represented by Charles Nesson of Harvard Law School, Founder of the Berkman Center. The defense is arguing that the statute under which he is being charged is unconstitutional, among other reasons because the penalties are so high that it is essentially a criminal law in the clothing of a civil law.

Cambridge, MA (October 2008) ‚Äì The Recording Industry Association of America (RIAA) is in the process of bringing to bear the full might of its combined lobbying and litigating power. And one defendant, Joel Tenenbaum, is fighting back with the help of his mother, a leading copyright and internet lawyer, and a Harvard Law School cyberlaw class.¬† What makes this counterclaim remarkable is not the legal tit-for-tat that is inherent in any contentious issue, but rather the fact that this legal team has taken its argument to the next level: constitutionality.

Joel is being threatened by the RIAA with punishment of more than a million dollars for downloading seven songs. Charles Nesson and his team of Harvard Law students are counterclaiming for abuse of process.¬† They argue that the statute, which mandates damages of up to $150,000 for each willful download, is unconstitutional.

But is the Constitution ready to embrace the reality of Internet?

Nesson’s team alleges that the RIAA is abusing law and the civil process of the federal courts. “At its core this counterclaim raises a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?” says Nesson.¬† The counterclaim also alleges that the RIAA’s action in the name of “deterrence” constitutes an abuse of process used for the ulterior purpose of intimidating others by extreme example.

In the only previous situation in which an RIAA music-downloading case such as this has gone to trial, Chief Judge Michael Davis set aside a jury verdict of $221,000, declaring the statutory damage award to be “unprecedented and oppressive.”

Are there limits to how we deal with copyright in the age of ubiquitous information?¬† And that’s exactly the question they hope the courts will finally address.

The filings in the case contain some pretty stirring language, for example:

——————-

Imagine¬†a statute which, in the name of¬†deterrence, provides for a $750 fine for each mile-per-hour that¬†a driver exceeds the speed limit, with the fine escalating to¬†$150,000 per mile over the limit if the driver knew he or she¬†was speeding. Imagine that the fines are not publicized, and¬†most drivers do not know they exist. Imagine that enforcement of¬†the fines is put in the hands of a private, self-interested¬†police force, that has no political accountability, that can¬†pursue any defendant it chooses at its own whim, that can accept¬†or reject payoffs in exchange for not prosecuting the tickets,¬†and that pockets for itself all payoffs and fines. Imagine that¬†a significant percentage of these fines were never contested,¬†regardless of whether they had merit, because the individuals¬†being fined have limited financial resources and little idea of¬†whether they can prevail in front of an objective judicial body.¬†To members of the born-digital generation, for whom sharing¬†music on the Internet is as commonplace and innocuous as driving¬†60 in a 55 mph zone, the prosecution of Joel Tenenbaum and¬†others like him is wholly analogous to this hypothetical.¬†Congress lacks the constitutional power to delegate such a¬†prosecutorial function to a private police, which is the role¬†that the recording companies and its industry organization, the¬†RIAA, is embodying.

This is the industrial consortium resisting global Internet censorship about which I blogged yesterday. The site is now up, and you can download three documents, on the principles, implementation guidelines, and governance, accountability, and learning framework. I cut and paste the central principles below:

Participating companies will respect and protect the freedom of expression of their users¬†by seeking to avoid or minimize the impact of government restrictions on freedom of¬†expression, including restrictions on the information available to users and the¬†opportunities for users to create and communicate ideas and information, regardless of¬†frontiers or media of communication.

Participating companies will respect and protect the freedom of expression rights of their¬†users when confronted with government8 demands, laws and regulations to suppress¬†freedom of expression, remove content or otherwise limit access to information and ideas¬†in a manner inconsistent with internationally recognized laws and standards.

Participating companies will employ protections with respect to personal information in all¬†countries where they operate in order to protect the privacy rights of users.

Participating companies will respect and protect the privacy rights of users when¬†confronted with government demands, laws or regulations that compromise privacy in a¬†manner inconsistent with internationally recognized laws and standards.

Require that governments follow established domestic legal processes when they are¬†seeking to restrict freedom of expression.

Interpret government restrictions and demands so as to minimize the negative effect on¬†freedom of expression.

Interpret the governmental authority‚Äôs jurisdiction so as to minimize the negative effect on¬†to freedom of expression.

And these implementation items seems particularly interesting:

Participants will refrain from entering into voluntary agreements that require the participants to¬†limit users‚Äô freedom of expression or privacy in a manner inconsistent with the Principles.

Voluntary agreements entered into prior to committing to the Principles and which meet this¬†criterion should be revoked within three years of committing to the Principles.

Now the first one is just what the principles as a whole are about. The second one suggests that the companies signing onto these principles are supposed to get out of deals they have already cut with the governments — the very deals that created the pressure to bring these principles into being. That’s an important provision, and puts immediate action items in front of management of some companies.

An amusing “Bits” detail. This site was not live yesterday when I blogged about the initiative after seeing the New York Times story, and it did not turn up in a Google search done yesterday morning. It must have gone live yesterday afternoon. But apparently Google was indexing it, even when the page design was under development and had filler for content. Here is what the Google search shows as the page content for the Global Network Initiative site as of 8:55am EDT today: “Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Morbi commodo, ipsum sed pharetra gravida, orci.” If you’ve used a graphic or web page design package, you’ll recognize as the default text.

A huge sword that has been hanging over Google Books was lifted today, when the company came to terms with representatives of U.S. authors and publishers. Those groups had claimed that by scanning in copyrighted works and making them available in limited form, Google was infringing their copyrights. Google here explains how book search will work in the future. In essence, the company will add an option so you can buy access to the full, scanned version of a copyrighted work. You won’t be able to download it, but you’ll be able to access it any time you log into your Google account. Libraries will be able to buy institutional subscriptions. An independent rights registry will be created to figure out where the money should go, in the (very large) case of copyrighted works for which the copyright holder is unknown (orphaned works).

Many, many details will determine whether this is a good deal for society or not. A lot depends on the price points, where the kitty of undistributed money goes, and so on. Any time an important issue like this is settled out of court, it’s a two-edged sword. On the one hand, most people will continue to get the service they’ve gotten used to and the courts have not gotten in the way. On the other hand, the underlying legal questions have not been settled, and could come back in another form.

Update: The settlement involves payments by Google of at least $80 million up front. The full details are available here, including how the user payments will be divided among the parties going forward. Again, the bottom line is that Google never admitted to doing anything wrong and the publishers never agreed that what Google was doing was within “fair use,” so the most important copyright questions may come back to bite us another day.

One of the most serious problems facing the Internet is that the free flow of information it permits is blocked by a variety of national regulations and laws. We give several examples in Blown to Bits: Google’s concession to Chinese demands that its search engine not return certain results, and the judgment of an Australian court that Barron’s had libeled an Australian businessman by Web publishing, in New Jersey, something that was perfectly legal in the U.S.

Now a joint effort by several Internet companies and nonprofits including the Berkman Center as resulted in a set of principles about how to deal with censorship and privacy violations demanded by national governments. (New York Times story, Wall Street Journal story and related blog. I can’t find the actual text of the agreement anywhere.)

The rules apparently will not cause any immediate drastic changes — we can be confident that Google will still be in China a year from now — and for that reason have drawn criticism from some human rights groups. But this is a very tough issue, and something is better than nothing. Essentially what we have here is a parallel to the anti-apartheid Sullivan Principles for companies doing business in South Africa. (Probably less onerous on the companies than the Sullivan Principles, actually.) There was always dispute about whether the Sullivan Principles went far enough and whether they played a significant role in bringing about change, but I think there is no doubt that they raised global awareness, and that alone would be a step forward for the Internet privacy and free-speech issues.

For those in the New York City area, Harry will be involved an Intelligence Squared Debate of that question on November 18 at Rockefeller University. Joining him in arguing the affirmative are Siva Vaidhyanathan (author of “Copyrights and Copywrongs,” and the forthcoming “The Googlization of Everything”) and law professor Randal Picker. They will be opposed by Esther Dyson, John Battelle (author of “The Search,” a good book about Google), and author Jeff Jarvis. Should be a great event.

As we discussed recently, electronic voting is an extremely tough problem, because it requires voters to have confidence that their votes are being recorded correctly, and to be unable to prove to anyone else how they voted. The two conditions can be achieved with the aid of cryptography — in theory. But it’s also essential that the system be simple to use and works in such a way that the general public will have confidence that there are no scams embedded in the software somehow.

There is a nice article in Salon on a couple of fairly realistic voter-verifiable election systems, including one by Ben Adida, who worked with Hal at MIT and is associated with Harvard’s Center for Research on Computation and Society. There’s progress and reason for hope, but it’s also possible that a bad experience in the upcoming election with some completely unrelated kind of electronic voting machines could increase resistance for any kind of continued deployment of better-designed systems.

Earlier this month, Harry blogged about the proposal by Google and others to open up some of the white space in the TV band for more unlicensed use.¬† the FCC will be voting on this proposal on November 4.¬† You can support this effort by signing the petition at www.FreeTheAirWaves.com.

The US Armed Forces are using the Internet for voting this year. I’m quite skeptical about machine voting in general. But by comparison with vote-at-home, both electronic voting and Internet voting are far superior ideas. The country seems to have forgotten that votes can be bought, if you can demonstrate to someone that you actually voted a particular way, by having them watch you or by walking away with a receipt showing how your vote was registered. You can also be pressured (OK, kids, let’s all sit down at the kitchen table and fill out our ballots family-style).

The obvious problems seem to have been covered here (for example, the vote travels from the foreign location to the US via a VPN connection, which should be secure). It’s not comforting that the system has had so little scrutiny (see Kerckhoffs’s principle in Blown to Bits — we’d feel much better if a bunch of our best hackers had been let loose on the system and it couldn’t be cracked). But given that soldiers are so disenfranchised generally, I regard this as a positive invention. Of course, I hope they’re not voting in the configuration shown in the picture, where they can easily look at their buddies’ screens!